Transgender people to be excluded from Australian same-sex marriage equality bill

THE GUERRILLA ANGEL REPORT — Word is that a same-sex marriage equality bill expected to be introduced in the Australian state of New South Wales will specifically exclude trans people.

From the Sydney Morning Herald: “The bill makes it clear it is about the marriage of same-sex couples only. Trans-sex marriages are not allowed . . .”

Cat Rose of Community Action Against Homophobia in response: “. . . Our campaign has been for full equality for everyone, we don’t settle for concessions and we won’t stand for this transphobia and the invisibilising of intersex people.”

———

This development unfolded in only a matter of days. The Australian trans community ought to respond to their Members of Parliament ASAP!

This development underscores an apparent trend of conservatives of shifting their targets away from gay people in general and zeroing in on trans people.

27 replies

This is NOT marriage EQUALITY! Until trans* and intersexed people have the same rights as every other citizen there is NO EQUALITY. Gay, lesbian and bi-sexual people should stand up for EQUAL RIGHTS FOR ALL!

transgender and transsexual people have been able to marry since gender recognition first occurred, unless you specifically brought in a law prohibiting trans people from marrying at all (Which is not happening, as far as i can tell) this article (which is based on a single sentence in another article) is fear mongering and sensationalist and carries no weight, the article does not quote or reference the bill at all. i call bullshit. lol

WTF! I have to laugh. “Transgender people to be excluded from Australian same-sex marriage equality bill”, how weird is that? Is it possible for lawmakers to hate transgender people so much? Heh, you bet your ass it is. Why? We’re the people that people love to hate.

I’m hoping this is a first draft that sadly over looked the issue that sex is not black and white. If your gender has been legally changed to male or female you can marry the opposite sex so why not same sex? Isn’t that what this is all about?
I would want to see the documentation before jumping to conclusions.

Lexie, the law being put forward is specifically excluding marriage between a man and a woman. Only in this way has it got a hope of passing as otherwise the state would be making a law that is already dealt with at the federal level. In Australia this is unconstitutional.

They are not being transphobic – in fact they are not referring in any way to trans people.

I certainly think the news article used the wrong word. Instead of ‘trans-sex marriage’ they should have used ‘opposite sex marriage’ – then there would have been a lot less confusion!

As such I would encourage everyone to fully support the bill. (and just to completely clarify my position I am a trans-woman) as it will allow same-sex marriage to be granted in New South Wales. Opposite sex marriage will still be granted as normal under federal law.

I also believe however that we should not cease in anyway to pressure the federal government to provide for true marriage equality at that level. Remove any reference to sex and make it would it should truly be – marriage is between two people (preferably that love each other *smile*)

Thanks for your comments Cate. I hope that what you are saying is true. However, until we’ve verification from lawmakers and perhaps a correction from the SMN, we’ve got to assume it means exactly what our two sources have said on record. Getting a very visible MP to state that trans people will not be excluded is the key here.

They can’t remove reference to sex. If they did it would be struck down by the High Court for contradicting the Commonwealth Marriage Act, which strictly defines marriage as a male + female affair. The reference to sex, in this case the same legal sex, is necessary because to ensure the success of the law, it cannot be seen to be intruding on something that is already covered by a federal law, which take precedence over state laws, and would result in it being invalid.

What would be preferable however to this situation where the states are having to find ways to legislate for equality, is for the federal government to remove the reference to sex / man / woman from the federal Marriage Act.

We then would not be forced to have to pass state level laws for groups that the federal government don’t want to cater for.

Cate, I’ve spoken to Penny Sharpe, who’s one of the authors of the bill, and by “trans-sex marriage” they indeed mean marriages that include a trans* partner. Specifically, in this case, they’re talking about trans* people who have begun to update their ID documentation (thus disqualifying them from man/woman marriage at the Federal level, which is only available to people with completely consistent documentation) but who haven’t yet altered their birth certificates (which requires certain surgical interventions depending on jurisdiction). Binary ID’d trans* people with completely consistent documents, including birth certificate, can count as being in “same-sex” marriages, but not trans* people who are either still in the process of changing sex ID, trans* people who aren’t interested in the required surgeries, or otherwise non-binary trans* people. Penny has said that they are still having the lawyers look over the legislation, but that’s my understanding of how it currently stands based on the current law and our discussions (a copy of which I’ve included below).

—

Sasha:
Hi Penny. I’m very concerned about the ambiguous line that “Trans-sex marriages are not allowed” in the SMH report on your cross party same-sex marriage bill as well as parts 7.30 and 7.31 of the Standing Committee’s report, which advise that a bill that is inclusive of trans* people may be constitutionally invalid. Can you confirm exactly how trans* and intersex people will be in/excluded from this bill? Is the mechanism to disqualify all trans* and intersex people from marriage under the NSW legislation?

If you had a copy of the draft bill for me to view that would be ideal, but I understand if that isn’t possible.

Penny Sharpe:
Hi- the draft of our bill will be available very soon. We had originally tried to include trans* and intersex couples in our bill but the view of the constitutional experts was that the states can only legislate for same sex couples only. Reluctantly we have redrafted the bill to reflect this. It is why marriage equality is so important federally . Regards Penny

Sasha:
Thanks Penny. I guess my question was more about what qualifies as a same-sex couple. For instance, would a trans* woman who has had affirmation surgery and changed her birth certificate to list her sex as F be able to marry her cisgender woman partner (since both of them would have the sex of F and are therefore a same-sex couple)? Or does the law specify that it covers only non-trans* same-sex couples (ie. where both partners are cisgender)?

Penny Sharpe:
Hi Sasha I wanted to be sure before I got back to you. The situation for a trans* man or woman who has had their birth certificate changed and in a relationship with a cis male or female partner will be that they will be able to get married under our bill. I hope this helps. Penny

Yeah… so… that means if you’re a same sex couple legally at the time of marriage, the bill covers you. If one of you is pre-op (since surgery is mandated for BC changed in NSW), then legally you’re considered a hetero couple, so the Commonwealth Marriage Act, which defines marriage as between a man and a woman, covers you. Obviously, if your legal sex is different, you’d not be covered by the “Same Sex Marriage Bill”. This is a necessary distinction in the bill, since federal laws take precedence over state laws, and so a distinct form of marriage for same sex couples has to be set up. When they say “it doesn’t cover trans people in the process of transition”, they’re just saying that this new law isn’t relevant, since those people can already get married under the current law.

Of course, this still leaves out non-binary and intersex people who have BCs that have neither F or M on them (those with a binary sex listed would be able to marry under either law). The ability to have a BC that lists something other than a binary sex is very recent development, and probably isn’t something that is really on parliament’s radar. This is obviously something that needs to be remedied, as does the requirement for a married trans person to have a divorce if they change their legal sex while married.

Thank you Sasha *smile* and I stand partly corrected in that they were considering trans* and intersex couples as well.

I actually find it reassuring that politicians are finally considering us – our situations and needs – in developing legislation. It is certainly very different then what was occurring only a few years ago.

I do understand their legal predicament though and I strongly believe – primarily due to a number of friends who under this bill will be finally able to get married (or in one case stay married after they transition) – that we should be fully supporting the NSW government in getting this bill passed.

As Penny says in her response to you – ‘marriage equality is so important federally’. That is where the pressure has to be applied to ensure the phobias, misinformation, and prejudices are removed so that true marriage equality can finally be put in place.

I think that there is one thing that should be pointed out. That in my state Queensland and I believe in NSW, The law is now that If one partner of a married couple changes gender. As soon as the paperwork is done the government will force that couple to divorce. With this new law that couple may well be able to stay married. There is also a precedent in NSW where if the person has changed gender prior to the marriage and it is a male/female marriage then the marriage is a “conventional Marriage” and therefore legal

OKay… as a person who is ftm.. If I showed up with my birth certificate and Id and I said I want to marry.. X person.. are they going to be like.. “You don’t look male enough to marry this man…or that woman!’ They might as well be.. “person who like cats are specifically excluded.” If there’s no restriction on the marriage having to be opposite gender.. then they have no way to exclude trans or intersexed folk. They’re just being silly.

I asked a highly-regarded trans woman from Australia for comment (from Facebook):

Zoe Ellen Brain OK, I’ll try to simplify.
Under the Australian Constitution, marriage is a Federal issue, not a state one (unlike the USA)
Federal law was changed in 2004 to state that marriage is between a man and a woman.

This has left a loophole – that States can then have state-recognised marriages, as long as they’re NOT between a man and a woman.

However… as Trans people are recognised as male or female, to cover them might be seen as overstepping the mark (and would be if opposite sexes were involved).

Unfortunately, the legal advisors to the drafters of the bill didn’t account for Intersex people (who by Federal caselaw can’t marry ANYONE due to a tragic 1979 decision). They also found the concept of Trans Lesbians and Gays “too hard” and omitted them to increase the chance that the law would withstand constitutional challenge.

We’re working very very hard behind the scenes to correct this. GLBTI orgs are furious – because they really are GLBTI down here, unlike some other parts of the world. The support from GLBs has been pretty darned special, with very few dissenters. The sound you hear is that of hundreds of human rights lawyers working overtime to draft wording to correct this. Will it be corrected? We’ll see.

Chelle Presgrave · Friends with Zoe Ellen Brain
wasn’t there a case back in the nineties that ruled a marriage legit between a ftm and a standard model female

Zoe Ellen Brain *BLUSH* Thanks, Helen.
Helen Dale by the way is the lawyer who wrote the prize-winning essay arguing the case for marriage equality in Scotland, which had very significant effects politically. It was unanswerable and utterly convincing, greatly decreasing opposition both there and south of the border.

Zoe Ellen Brain Chelle Presgrave – there are two leading cases here:
First the Re Kevin decisions. For those, I refer you to Rachel Wallbank’s piece “Re Kevin in Perspective”, Deakin Law Review 22 2004http://www.austlii.edu.au/au/journals/DeakinLRev/2004/22.html
Wallbank, Rachael — “Re Kevin in Perspective” [2004] DeakinLawRw 22; (2004) 9(2) Deakin Law…http://www.austlii.edu.au
[This article discusses the evolution of the common law concerning the phenomeno…See More

Zoe Ellen Brain The second is “In the Marriage of C and D (falsely called C)”, (1979) FLC ¶90-636http://oii.org.au/16808/annulment-marriage-due-intersex-marriage-falsely-called/
An annulment of marriage due to being intersex – In the marriage of C and D (falsely called C).
oii.org.au
A Brisbane Family Court case in 1979 annulled a marriage on the basis that an intersex person cannot be legally married because marriage can only be between someone who is seen to be 100% man and s…

I do not see how this is even possible, if they are enacting the bill which allows Same sex marriage it is thus impossible to block trans* people, this is why, not all trans people will identify them selves as being trans* and thus if they are straight they will fall under “same sex” marriage which in actuality they are not gay but straight, if they are gay then they will fall under “straight” marriage, so explain how they can block this…

This is a late comment, but just to clarify this discussion, since 2001 and the decision in Re Kevin given by the Family Court of Australia, the law of Australia has permitted people living with transsexualism to legally marry in their affirmed sex. They are considered to be of the affirmed sex for the purpose of marriage. Same Sex and Marriage Equality issues therefore have no particular relevance to people who experience TS in Australia; except to the extent that a natural proportion of them would wish to enter into Same Sex marriage – presently impossible as a result of the wording of the Commonwealth Marriage Act.
Same Sex and Marriage Equality issues may have relevance, however, to Australians who experience Trans/Pan-Gender expression issues, often confused with transsexualism due to sloppy “trans*” language usage, who are not recognised as being other than members of their first assigned sex.

I think you may be neglecting to consider the case where a person changes legal sex while they are in a marriage. That has been the main problem in other countries with considering there to be two distinct kinds of marriage.

Dear Daira,
Of course, but I did not think this was the issue being discussed above. In any case, as I have said in published material, the prohibition on married people changing/correcting their legal sex is against human rights and born of misplaced homophobia.